United States Court of Appeals

For the First Circuit

No. 00-1451

ANGELO GROCCIA,

Petitioner, Appellant,

v.

JANET RENO, ATTORNEY GENERAL, ET AL.,

Respondents, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

 Selya, Circuit Judge,

Coffin and Bownes, Senior Circuit Judges.

Prasant D. Desai, with whom Desai & Graves was on brief, for

appellant.

Brenda M. O'Malley, Attorney, Office of Immigration

Litigation, with whom David W. Ogden, Assistant Attorney

General, Civil Division, and Terri J. Scadron, Senior

Litigation Counsel, Office of Immigration Litigation, were on

brief, for appellees.

December 18, 2000
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SELYA, Circuit Judge. In 1996, Congress made massive

changes to the immigration laws. See Illegal Immigration Reform

and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No.

104-208, 110 Stat. 3009-546; Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat.

1214. Those changes led to a flood of litigation. The case at

bar is one rivulet in that seemingly endless stream.

The background facts are virtually undisputed. Angelo

Groccia, a native of Italy, entered the United States lawfully

in 1955 and became a resident of Massachusetts. On February 1,

1996, he pled guilty in a Massachusetts state court to two

counts of unlawful distribution of cocaine. Mass. Gen. Laws ch.

94C, § 32(A). As a result of this conviction, the Immigration

and Naturalization Service (INS) served Groccia with an Order to

Show Cause (OSC) on July 5, 1996. For some unexplained reason,

the INS never filed that paper with the Immigration Court.

The IIRIRA then took effect. On August 11, 1997, the

INS issued a Notice to Appear (NTA) — the functional equivalent

of an OSC — addressed to Groccia. This time, the agency filed

the charging document with the Immigration Court.
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On October 9, 1997, an immigration judge (IJ) convened

a hearing, sustained the INS's charges, refused to consider

Groccia's plea for discretionary relief, and ordered his

deportation. After unsuccessfully appealing this decision to

the Board of Immigration Appeals (BIA), Groccia filed a petition

for a writ of habeas corpus in the United States District Court

for the District of Massachusetts. The district court stayed

deportation and agreed with Groccia that it had jurisdiction to

entertain the habeas petition. Groccia v. Reno, 89 F. Supp. 2d

127, 129-32 (D. Mass. 2000). In the end, however, the court

denied the petition on the merits. Id. at 132. This appeal

ensued.

To understand Groccia's appellate argument, it is

helpful first to rehearse certain aspects of the changes in the

immigration laws to which we already have alluded. Prior to

April 24, 1996, an alien convicted of a crime similar to the one

that Groccia committed nonetheless could apply for a

discretionary suspension of deportation under section 212(c) of

the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(c)

(repealed 1997). Effective April 24, 1996, the AEDPA enlarged

the category of crimes that automatically rendered an alien

ineligible for section 212(c) relief. See AEDPA § 440(d). That

enlargement encompassed the crime that Groccia had committed.
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Id. To make matters worse from Groccia's standpoint, Congress's

enactment of the IIRIRA on September 30, 1996, abolished

suspension of deportation entirely and replaced it, effective

April 1, 1997, with a more restrictive procedure called

cancellation of removal. IIRIRA § 304(a)(3), 8 U.S.C. §

1229b(b)(1) (1999). Groccia cannot meet either the criteria for

cancellation of removal or, if AEDPA § 440(d) applies, the

amended criteria for waiver of deportation.

Groccia's argument — which the district court rejected

— weaves in and out of this mine field. The IIRIRA established

transitional rules to govern cases commenced, but not completed,

prior to its effective date. IIRIRA § 309(c). These

transitional rules preserve a limited degree of access to

waivers of deportation. Groccia asserts (1) that the

transitional rules should govern his case because he was placed

in deportation proceedings when the INS served him with the OSC

on July 5, 1996, and (2) that AEDPA § 440(d) should be ignored

because its retrospective application to his pre-AEDPA

conviction would be unconstitutional. If these assertions are

correct, section 212(c) is open to him, and both the IJ and the

BIA erred in refusing to consider his plea for section 212(c)

relief.
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The respondents counter on two fronts. First, they

suggest that we need not deal with Groccia's argument at all,

inasmuch as the district court lacked jurisdiction over his

habeas corpus petition. Second, they asseverate that, in all

events, deportation proceedings commenced not with the service

of the OSC, but with the later filing of the NTA. Since that

filing did not occur until August 11, 1997, their thesis runs,

the IIRIRA was in full force, section 212(c) stood repealed, and

Groccia was not entitled to make a pitch for waiver of

deportation. The parties' contentions present questions of law

that engender de novo review. Costa v. INS, ___ F.3d ___, ___

(1st Cir. 2000) [No. 99-2357, slip op. at 5]; Wallace v. Reno,

194 F.3d 279, 280-81 (1st Cir. 1999).

We need not linger long over the respondents'

jurisdictional argument. Regardless of whether a case is

governed by IIRIRA's permanent rules or by its transitional

rules, the district courts retain their traditional alien habeas

jurisdiction under 28 U.S.C. § 2241. See Mahadeo v. Reno, 226

F.3d 3, 10 (1st Cir. 2000) (holding that district courts retain

habeas jurisdiction under the IIRIRA); Wallace, 194 F.3d at 285

(holding to like effect under the transitional rules). Thus,

the district court appropriately reached the merits of the

petitioner's claim.
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We proceed to the vexing question of whether section

212(c) relief remains a possibility for a person in Groccia's

circumstances. Choice of law has decretory significance in this

inquiry, inasmuch as the permanent rules purpose to eliminate

section 212(c) waivers of deportation entirely. In turn, choice

of law depends largely on when deportation proceedings were

commenced. See IIRIRA § 309(c)(1) (providing that IIRIRA's

permanent rules do not apply to "an[y] alien who is in exclusion

or deportation proceedings as of [April 1, 1997]"); see also

Costa, ___ F.3d at ___ [slip op. at 6-13] (discussing the

issue).

In conducting this line-drawing exercise, we do not

write on a pristine page. We previously have addressed the

plight of criminal aliens who, like Groccia, became statutorily

ineligible for waivers of deportation by reason of AEDPA §

440(d) on the basis of guilty pleas that were tendered prior to

April 24, 1996 (AEDPA's effective date). We have, in effect,

constructed a continuum. In Goncalves v. Reno, 144 F.3d 110

(1st Cir. 1998), we decided that the full gamut of section

212(c) relief — that is, relief unconstrained by the automatic

disqualifiers limned in AEDPA § 440(d) — was still available to

criminal aliens who had applications for such relief pending on

April 24, 1996. Id. at 133. We subsequently determined that
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the same rule obtained for criminal aliens who had not applied

for section 212(c) relief prior to April 24, 1996, but who were

already in deportation proceedings at that time. Wallace, 194

F.3d at 285-87. In the last of three landmark cases, we held

that a criminal alien whose conviction pre-dated the AEDPA, but

who was not placed in deportation proceedings until after April

24, 1996, was eligible for the full gamut of section 212(c)

relief only if he could demonstrate that he actually and

reasonably relied on the possibility of such relief when

entering his guilty plea. Mattis v. Reno, 212 F.3d 31, 33 (1st

Cir. 2000). This trilogy forms the framework under which

Groccia's claim must be analyzed.

Groccia pleaded guilty to cocaine distribution on

February 1, 1996 — two months before the AEDPA became law. The

INS served him with an OSC on July 5, 1996 — after AEDPA's

effective date, but well before IIRIRA's effective date. If, as

the petitioner contends, service of the OSC marked the

commencement of deportation proceedings, he falls under the

Mattis rubric. The case law seems to support that positioning.

E.g., Alanis-Bustamante v. Reno, 201 F.3d 1303, 1307-09 (11th

Cir. 2000) (holding, in analogous circumstances, that a criminal

alien upon whom an OSC had been served was then and thereafter

in deportation proceedings); Wallace, 194 F.3d at 287 (similar).
1We assume this point arguendo because the matter is not

entirely settled by existing precedent. The respondents argue,

based principally on 8 C.F.R. § 3.14(a), that no deportation

proceedings were commenced until the INS filed the NTA with the

Immigration Court on August 11, 1997; that IIRIRA's permanent

rules therefore apply; and, accordingly, that any hope of a

section 212(c) waiver is by the boards. Neither Mattis nor

Wallace foreclose this argument because those cases involved the

transitional rules and left open (as do we) the question of how

criminal aliens similarly situated would fare under IIRIRA's

permanent rules. Mattis, 212 F.3d at 35 n.9; Wallace, 194 F.3d

at 288.

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Since this is the outcome to which Groccia aspires, we assume,

favorably to him — but do not decide — that Groccia was in

deportation proceedings prior to the advent of the IIRIRA.1 As

such, all that is left is to apply Mattis to the facts of this

case.

The Mattis court disclaimed any intention to resurrect

section 212(c) by ignoring all criminal convictions that

antedated the AEDPA. 212 F.3d at 39. The court concentrated on

situations in which the alien either had admitted his guilt or,

at least, had not contested the charge (as opposed to those in

which the alien had been convicted after a trial). Id. at 39-

40. Even then, the court regarded "[t]he universe of all aliens

who entered guilty pleas before April 1996" as "too broad." Id.

at 39. Hence, it narrowed the class in two ways: first, by

holding that section 212(c) relief "continues to be available

for deportable aliens whose requisite criminal convictions pre-
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dated AEDPA, if, and only if, the alien actually and reasonably

relied on the availability of 212(c) relief when he pled guilty

to or did not contest the criminal charges," id. at 38; and

second, by making clear that only those aliens who could prove

actual reliance on the availability of section 212(c) could take

advantage of the rule, id. at 39-40.

Mattis does not help Groccia. The case's holding

emanated from a concern about retroactivity — a concern that an

alien might have relied on the existence of section 212(c) and

his presumptive eligibility for relief thereunder when he

decided, pre-AEDPA, not to contest a criminal charge. Thus,

reliance was the touchstone. Because Mattis himself had failed

to raise any claim of reliance before the Immigration Court, the

BIA, or the district court, and because the record was devoid of

any evidence of reliance, we refused to remand for further

proceedings. Id. at 41. Instead, we held the petitioner to the

consequences of his procedural default and affirmed the

dismissal of his habeas application. Id.

The same analysis carries the day here. The record is

barren of any proof of reliance. That is not fortuitous: the

petitioner neglected to raise the issue of reliance either

during the administrative proceedings or in the district court.

Even after Mattis was decided, Groccia compounded these
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omissions by failing to make a proffer or to identify in this

court any evidence tending to show reliance. He has not so much

as adumbrated, even at this late date, a viable theory of

reliance.

That ends the matter. Conventional forfeiture rules

pertain in alien habeas cases. E.g., id.; Prado v. Reno, 198

F.3d 286, 292 (1st Cir. 1999); Goncalves, 144 F.3d at 125.

These rules, straightforwardly applied, counsel against

prolonging this litigation.

Groccia attempts to avoid this result in two ways.

First, he argues that we should pay special attention to his

lengthy residence in the United States, his family ties, his

generally commendable deportment (apart from his drugtrafficking conviction), and kindred factors. While these

equities would weigh in his favor in a merits-based

consideration of his entitlement to discretionary relief from

deportation under section 212(c), e.g., Gouveia v. INS, 980 F.2d

814, 816 (1st Cir. 1992), they do not bear on the preliminary

question of whether he relied in any cognizable manner on the

availability of such relief when he decided not to contest the

criminal charges lodged against him in early 1996.

Groccia's fallback position is that we should excuse

his failure to offer any proof of detrimental reliance because
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our Mattis opinion post-dated the earlier proceedings in this

case. We did not accord that type of largesse to Mattis

himself, and we see no reason to do so here. As Judge Lynch

noted in Mattis, 212 F.3d at 41, "the issue of reliance is

hardly new." At least since 1994, that issue has been integral

to any meaningful inquiry into the retroactive effect of a new

law. See Landgraf v. USI Film Prods., 511 U.S. 244, 270 (1994);

see also Kolster v. INS, 101 F.3d 785, 788-89 (1st Cir. 1996)

(discussing the point). Mattis is no more than a logical

extrapolation of these decisions. The fact of the matter is

that well-established case law, dating back to before the start

of the administrative proceedings in this case, effectively

placed Groccia on notice that if section 212(c) were available

to him at all, reliance was an issue to be addressed.

We need go no further. Assuming, favorably to Groccia,

that immigration proceedings commenced prior to IIRIRA's

effective date, he nonetheless is ineligible for section 212(c)

relief because he has not proffered even a barebones showing of

actual and reasonable reliance. Consequently, we affirm the

district court's dismissal of his habeas petition. The stay of

deportation is vacated.

Affirmed.